Citation Nr: 0617431
Decision Date: 06/15/06 Archive Date: 06/27/06
DOCKET NO. 01-04 336A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
headaches.
2. Entitlement to service connection for post traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran and K.T.
ATTORNEY FOR THE BOARD
John Z. Jones, Counsel
INTRODUCTION
The veteran served on active duty from August 1967 to April
1968.
This appeal to the Board of Veterans' Appeals (Board) arose
from a February 2000 rating decision of the Buffalo, New
York, Department of Veterans Affairs (VA) Regional Office
(RO).
The veteran's appeal originally included the additional issue
of entitlement to service connection for loss of feeling on
the left side of his face with loss of sense of taste. But
in a November 2002 decision, during the pendency of this
appeal, the RO granted compensation under 38 U.S.C.A. § 1151
for loss of sensation on the left side of face and assigned a
10 percent rating effective May 13, 1999. The RO also
granted compensation under 38 U.S.C.A. § 1151 for loss of
sense of taste due to cranial nerve damage and assigned a
noncompensable (i.e., 0 percent) rating effective May 13,
1999. In response, he filed a notice of disagreement (NOD)
in January 2003 (Vol. 5 of the claims file) requesting higher
initial ratings and earlier effective dates for the two
service-connected disabilities. See Grantham v. Brown, 114
F.3d 1156 (Fed. Cir. 1997)(where an appealed claim for
service connection is granted during the pendency of the
appeal, a second NOD thereafter must be timely filed to
initiate appellate review of the claim concerning the
compensation level assigned for the disability). See also
Fenderson v. West, 12 Vet. App. 119 (1999) (when a veteran
timely appeals the rating initially assigned for a disability
- just after establishing his entitlement to service
connection for it, VA must consider his claim in this
context, which includes determining whether his rating should
be "staged" to compensate him for times since the effective
date of his award when the disability may have been more
severe than at others). The RO subsequently sent the veteran
a statement of the case (SOC) regarding these downstream
issues in April 2005 (Vol. 6 of the claims file), but he did
not then perfect his appeal to the Board by filing a timely
substantive appeal (e.g., a VA Form 9), as required by
38 C.F.R. § 20.202.
So the issues of entitlement to higher initial ratings and
earlier effective dates for loss of sensation on the left
side of the face and for loss of sense of taste due to
cranial nerve damage are not before the Board. See 38 C.F.R.
§ 20.200 (2005). [As an aside, the Board notes that in the
April 2005 SOC the RO changed the effective dates for these
grants to September 4, 1998.]
The claims that are before the Board are being remanded to
the RO via the Appeals Management Center (AMC) for further
development and consideration. VA will notify the veteran if
further action is required on his part.
REMAND
Reasons for remand
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
headaches
Entitlement to service connection for PTSD
Veterans Claims Assistance Act (VCAA) notice
The VCAA, enacted in November 2000, enhanced VA's duty to
notify a veteran of the information and evidence necessary to
substantiate a claim for VA benefits. This requires
notifying him and his representative of any information, and
any medical or lay evidence, not previously provided to VA
that is necessary to substantiate the claim and explaining
which portion of the supporting evidence is to be provided by
whom - him or VA. See 38 U.S.C.A. § 5103 (West 2002).
VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) must: (1) inform the veteran about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the veteran about the
information and evidence that VA will seek to provide; (3)
inform him about the information and evidence he is expected
to provide; and (4) request or tell him to provide
any evidence in his possession pertaining to the claim.
See Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004)
(Pelegrini II). This "fourth element" of the notice
requirement comes from the language of 38 C.F.R. §
3.159(b)(1) (2005).
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability;
(3) a connection between the veteran's service and the
disability; 4) degree of disability; and 5) effective date of
the disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Dingess/Hartman, slip op. at 14. Additionally, this notice
must include mention that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is granted. Id.
In addition to the above-referenced procedures for
implementation of the duty to notify and assist under the
VCAA, there is another precedent decision recently enacted
during the pendency of this appeal pertaining specifically to
a petition to reopen a previously denied claim for VA
benefits. In Kent v. Nicholson, No 04-181 (March 31, 2006),
the Court held that in providing a claimant with notice of
the legal requirement of "new" and "material" evidence as
the pre-requisite for reopening a previously denied claim,
the content of the VCAA notice issued must inform him of the
"unique character of evidence that must be presented" in
order to reopen the denied claim in the specific case at
issue -- including with respect to each legal requirement
that must be established to warrant entitlement to the
benefit sought.
In providing notification of the requirement of "material"
evidence to reopen a previously denied claim, VA must
consider the basis for the previous denial and provide a
notice letter describing what evidence would be needed to
substantiate the element or elements found insufficient in
the previous denial (including the general "elements" that
constitute a valid claim for service connection defined in
Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d
604 (Fed. Cir. 1996)). These necessary elements are evidence
of a current disability, competent evidence of in-service
incurrence or aggravation, and a medical nexus between the
current disability and service. Additionally, comprehensive
VCAA notice for a petition to reopen requires that the
claimant is informed of the definition of "new" evidence
with reference to his claim. The failure to describe what
would constitute "material" evidence in almost all
circumstances will have a prejudicial effect upon the
adjudication of the claim, and thus the absence of such
information would not be harmless error. However, the
failure to notify a claimant of the need to provide "new"
evidence would not have a prejudicial effect on the outcome
of a petition to reopen, in the specific instance where that
claim was previously denied on the basis of an element for
which no evidence had previously been submitted, since any
evidence submitted would by definition be new.
A preliminary review of the record in this particular appeal
reflects that the veteran's original claim for service
connection for headaches was denied by the Board in a May
1987 decision. The Board determined his headache disorder
preexisted service and was not aggravated during service
beyond its natural progression.
The veteran has not received notice that complies with the
VCAA. The VCAA notice letters sent to him in March 2001,
September 2003, January 2004, July 2004 and May 2005
concerned unrelated issues. So no VCAA notice has been
provided concerning the specific issues of whether new and
material evidence has been submitted to reopen the claim for
service connection for headaches and for service connection
for PTSD.
VA examination
According to 38 C.F.R. § 3.304(f) (2005), service connection
for PTSD requires: (1) medical evidence diagnosing the
condition in accordance with § 4.125(a) (i.e., DSM-IV) (2) a
link, established by medical evidence, between current PTSD
symptoms and an in-service stressor, and (3) credible
supporting evidence that the claimed in-service stressor
occurred.
With regard to the third PTSD criterion, evidence of an in-
service stressor, the evidence necessary to establish that
the claimed stressor actually occurred varies depending on
whether it can be determined the veteran "engaged in combat
with the enemy." 38 U.S.C.A. § 1154(b) (West 2002); 38
C.F.R. § 3.304(d) (2005). If the evidence establishes the
veteran engaged in combat with the enemy and the claimed
stressor is related to that combat, in the absence of clear
and convincing evidence to the contrary, and provided that
the claimed stressor is consistent with the circumstances,
conditions, or hardships of the veteran's service, his lay
testimony alone may establish the occurrence of the claimed
in-service stressor. 38 C.F.R. § 3.304(f) (2005).
Where on the other hand a determination is made the veteran
did not "engage in combat with the enemy," or the claimed
stressor is not related to combat, his lay testimony alone
will not be enough to establish the occurrence of the alleged
stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996);
Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, the
record must contain service records or other corroborative
evidence that substantiates or verifies his testimony or
statements as to the occurrence of the claimed stressor. See
West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki
v. Brown, 6 Vet. App. 91, 98 (1993).
The medical evidence presently on file is conflicting as to
whether the veteran currently has PTSD. VA examinations in
September 1999 and July 2002 did not result in a diagnosis of
this condition; the 1999 examiner stated there was
insufficient evidence to support this diagnosis. But other
VA medical records, including one dated in June 2000, list
this diagnosis.
The veteran apparently is not contending he engaged in
combat. And his military personnel record, DD Form 214
specifically, does not show he served in Vietnam during his
period of active duty. He also was not awarded any medals or
commendations indicative of combat. 38 U.S.C.A. § 1154 (and
the implementing regulation, 38 C.F.R. § 3.304(d)) require
that he actually have participated in combat with the enemy,
meaning participated in events constituting an actual fight
or encounter with a military foe or hostile unit or
instrumentality, and does not apply to veterans who served in
a general "combat area" or "combat zone" but did not
themselves engage in combat with the enemy. See VAOPGCPREC
12-99 (October 18, 1999). His military occupational
specialty (MOS) was "trainee." So as there is no objective
evidence confirming his participation in combat,
the law requires that his claimed stressor be corroborated by
evidence other than his lay testimony or the diagnosis of
PTSD.
The veteran alleges his PTSD is the result of a boiler room
explosion in 1967. See his statement in support of claim, VA
Form 21-4138, dated August 28, 1998. His service medical
records (SMRs) show he was treated on August 18th and 19th,
1967, for first-degree burns on the left side of his face and
neck; but these records do not indicate how he sustained the
burns. While the exact circumstances surrounding this injury
are unknown, burns are the type of trauma that would be
expected from the type of explosion alleged. So the Board
finds that the burns sustained by the veteran in August 1967
corroborate his alleged stressor.
In light of this, the Board believes the veteran should be
provided another VA psychiatric examination to obtain a
medical opinion indicating whether he has PTSD (according to
DSM-IV) related to this confirmed stressor in service.
See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).
The veteran also acknowledges that, after service, he joined
a civilian organization conducting search and rescue
operations for missing in action and prisoners of war in
Vietnam and, in that capacity, was exposed to many life-
threatening accidents. See VA psychiatric note, dated April
29, 1999. Since, however, these activities clearly occurred
after his period of military service, as he readily admits,
none of the alleged stressors occurring during this time can
be used to support his claim for PTSD as a result of his
service in the military.
Accordingly, this case is REMANDED to the RO (via the AMC)
for the following development and consideration:
1. Send the veteran a VCAA letter
specifically concerning the issues of
whether new and material evidence has
been submitted to reopen the claim for
service connection for headaches and
entitlement to service connection for
PTSD. The letter must: (i) advise him
of the type of evidence needed to
substantiate these claims; (ii) apprise
him of the evidence he must submit;
(iii) apprise him of the evidence VA
will obtain; and (iv) request that he
submit any relevant evidence in his
possession. The letter also must
include an explanation of the
information or evidence needed to
establish a disability rating and
effective date for these claims,
as outlined by the Court in
Dingess/Hartman v. Nicholson, Nos. 01-
1917 and 02-1506 (U.S. Vet. App. Mar.
3, 2006).
In addition, regarding the new and
material claim, the letter must provide
notice of the legal requirement of
"new" and "material" evidence as the
pre-requisite for reopening this
previously denied claim concerning the
headaches. The letter must describe
what evidence would be needed to
substantiate the element or elements
found insufficient in the previous
denial (i.e., evidence that the
preexisting headache disorder was
aggravated by service beyond its
natural progression. See the May 1987
Board decision). This notice is
required by Kent v. Nicholson,
No 04-181 (March 31, 2006).
2. Have the veteran re-examined to
determine whether he has PTSD
(according to DSM-IV) as a result of
his military service. To facilitate
making this important determination,
the claims folders must be made
available to the designated
psychiatrist. All necessary diagnostic
testing and evaluation should be
conducted and the examiner should
review the results of any testing prior
to completion of the report.
The examiner must indicate whether the
veteran meets the DSM-IV criteria for a
diagnosis of PTSD and, if he does,
render a medical opinion as to whether
it is at least as likely as not (i.e.,
50 percent or greater probability) the
diagnosed PTSD is the result of the
"boiler room explosion" in service.
(Note: only this stressor can serve as
grounds for the diagnosis of PTSD).
The examiner should discuss the
rationale of the opinion, whether
favorable or unfavorable.
3. Then readjudicate the claims in
light of the additional evidence
obtained. If the benefits requested
are not granted to the veteran's
satisfaction, send him and his
representative a supplemental statement
of the case and give them an
opportunity to respond to it before
returning the case to the Board for
further appellate consideration.
The purpose of this REMAND is to obtain additional evidence
and ensure the veteran is afforded due process of law. The
Board intimates no opinion, either factual or legal, as to
the ultimate disposition warranted. No action is required by
the veteran until contacted. He has the right to submit
additional evidence and argument concerning the claims the
Board has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999).
The claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).